IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027539 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he feels he was treated unfairly.  He was 19 years old at the time and he did not understand what was happening.  He simply accepted the unjust punishment for something he did not do.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 23 August 1959 and enlisted in the Regular Army at 17 years of age for a period of 3 years on 29 November 1976.  He was trained in and held military occupational specialty 52D (Power Generator Equipment Repairer).  

3.  On 14 December 1976, while still in basic combat training, he accepted nonjudicuial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order. 

4.  On 15 March 1977, while still in advanced individual training, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana.

5.  He served in Germany from 15 July 1977 to 23 November 1979.  He was assigned to the 557th Maintenance Company.  While in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ on 25 August 1978 for incapacitation for the proper performance of his duties as a result of a previous indulgence in liquor.

6.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a. Orders 121-29, issued by Headquarters, 178th Personnel Service Company, on 13 November 1978 reducing him to the lowest enlisted grade and ordering his reassignment him to the U.S. Army Transfer Point, effective 16 November 1978 for separation processing; and 

	b.  A DD Form 214 that shows he was discharged on 17 November 1978 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by a court-martial, with a character of service of under other than honorable conditions.  He completed a total of 1 year, 11 month, and 19 days of creditable active service.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his under other than honorable conditions discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 17 November 1978 under the provisions of Army Regulation    635-200, chapter 10, for the good of the service - in lieu of a court-martial, with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.  As such, there is no reason to upgrade his discharge.

4.  The applicant was 17 years of age at the time of his enlistment and nearly 19 years of age at the time of his separation.  However, there is no evidence that he was any less mature than other Soldiers who successfully completed their military service.
5.  The available evidence shows a military career marred with misconduct that included three instances of NJP.  As a result, his overall record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general or an honorable discharge.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100027539



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ABCMR Record of Proceedings (cont)                                         AR20100027539



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